On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication January 25, 1996.
Before Judges A.m. Stein and Cuff. The opinion of the court was delivered by A.m. Stein, J.A.D.
The opinion of the court was delivered by: Stein
The opinion of the court was delivered by A.M. STEIN, J.A.D.
We reverse petitioner's denial of his post-conviction relief application because the trial Judge permitted petitioner to be shackled in the presence of the jury.
According to the evidence produced at trial, petitioner, Reginald Ross and Michael Streater, driving in a stolen beige car, robbed and severely assaulted three individuals. Two of the victims were stabbed. One of the victims identified petitioner as the person who stabbed him twice and severely beat him. A friend of one victim identified petitioner at trial as the individual driving the car.
Petitioner did not testify at trial. He offered the testimony of Streater, who admitted participating in the attacks but insisted that petitioner was not there that night and that the third assailant was a cousin of Ross. On rebuttal, the State presented Ross as a witness, who testified that petitioner was the third assailant.
Petitioner was found guilty of three counts of first degree robbery, three counts of aggravated assault and two counts of aggravated assault with a deadly weapon. After merging several of the convictions, the Judge sentenced petitioner to a sixty-year prison term with a thirty-year parole ineligibility period. A total VCCB penalty of $1,500 was imposed. We affirmed the judgment of conviction with the exception of the sentence. We remanded the matter to the trial Judge for resentencing pursuant to the guidelines in State v. Yarbough, 100 N.J. 627, 644, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), now superseded by statute, N.J.S.A. 2C:44-5, L. 1993, c. 223, P 1, eff. Aug. 5, 1993, and instructed the trial Judge that the sentence not exceed an aggregate prison term of forty years with a twenty-year parole ineligibility period. State v. Damon, No. A-9438-87 (App. Div. June 26, 1990). On remand, the trial Judge resentenced petitioner to a forty-year prison term with a twenty-year parole ineligibility period. We affirmed the sentence. State v. Damon, No. A-2629-90 (App. Div. Dec. 17, 1991), certif. denied, 127 N.J. 564 (1992).
Petitioner raises the following contentions in his brief on appeal:
I. THE COURT BELOW ERRED BY FAILING TO FIND THAT PETITIONER WAS DENIED A FAIR TRIAL, UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION, WHEN THE TRIAL COURT FORCED PETITIONER TO STAND TRIAL IN RESTRAINTS.
A. The Court Below Erred When it Denied the Petition for Post-Conviction Relief on Procedural Grounds.
B. The Court Below Erred When it Found that Petitioner Had Not Been Deprived of a Fair Trial Despite the Fact that He Was restrained Throughout His Trial Without Sufficient Cause.
II. THE COURT BELOW ERRED BY FAILING TO FIND THAT PETITIONER WAS DEPRIVED OF DUE PROCESS OF LAW WHEN THE TRIAL COURT EXCLUDED HIM FROM A JUROR ...